Common Excuses used by Copyright Infringers

copyright infringement common excuses

Copyright infringement can be an unfortunate consequence of working within a creative industry. It affects musicians, designers, writers, and of course photographers. Under the laws of England and Wales copyright is a presumption and our laws protect the rights of creators. This means that when our work is used without our permission we can seek remedy for that use. Commonly this involves sending the infringer an invoice based on our usual fee. Very occasionally an infringer will decide they don’t want to pay up, partly because they feel we’d never take things as far as the courts. Some copyright infringements do unfortunately end up in court, because the Claimant (the author of the ‘stolen’ work) has been left with no other option.

This discussion relates to the laws of England and Wales
Laws may differ in your jurisdiction. I’m not a lawyer, and what I’ve written is simply
my view based on my own experience. Always seek legal advice before taking any action

The definitions used in this article refer to the person who has created the work (the ‘owner’) as the creator, originator, infringed party, or if the matter goes to court they then become known as the Claimant. The person who has taken the creator’s work and used it without permission is known as the infringer, the infringing party, or in court as the Defendant.

I found myself in the High Court in London in mid-February 2019 where my claim against another UK photographer was heard before a specialist IP Judge (I’ll talk about this case in more detail soon enough). I’m still shocked that the infringer allowed the situation to escalate to the point of litigation, despite having ample opportunity in the pre-action period (and beyond) to pay his debt. Consequently this individual has ended up with a ruling of more than four times that of my original invoice. Defending a claim of copyright infringement is pointless if the infringement is clear-cut and proven. The thumb-nosing attitude of some infringers is unbelievable and I have to wonder if they think the whole thing is a game. That’s a risky mindset, as my opponent found out.

When we contact an infringer the excuses offered can be hard to fathom. The excuses submitted to a court as part of a defence aren’t much better either in some cases. It seems extraordinary that a copyright infringer would even try to defend what they’ve done in a court of law (assuming the infringement can be proven). I often wonder about the arguments some Defendants will attempt to rely on before a Judge since so many of them appear to be pulled from their own imagination or perhaps from ill-advised discussions on forums. Overall, the court will disregard a defence which is without merit (just as they’ll disregard an unmeritorious claim). We live in the age of the Internet, it’s pretty easy for the infringing party to look up the laws a Claimant is able to rely on. There’s also an expectation that an infringer should at least take some basic legal advice before allowing a letter before action to lapse, though it seems many do not. No competent lawyer would advise an infringer to ignore pre-action paperwork.

Submitting a defence which is ill reasoned, vexatious, or even defamatory will do a Defendant no favours in court.

The most frequent excuses I’ve seen include the following:

It’s available on the Internet therefore it’s in the public domain. No, it isn’t in the public domain - that would only be the case if copyright no longer subsisted on the work (70 years after the creator’s death). This statement implies that anything posted on the web should be available to all and sundry without charge - we know that’s nonsense

My web designer did it. A business owner carries responsibility for the contents of their website. They have a duty to ensure that anything posted on that website meets the necessary legal criteria. Very often the ‘web person’ alluded to doesn’t even exist. There are cases however where a web designer could be held liable (although that would depend on the kind of contract the infringing business had with whoever had designed their site)

I didn’t do it on purpose. Proving you did it in your sleep is going to be tough. The simple fact is that infringers don’t post other people’s content for no reason. They do so because that content might be of value to them or their business

It’s good exposure for the photographer/author.
This is a line many amateur photographers still fall for. In fact many large businesses will rely on this excuse alone. I’ve been published enough times, both on the web and in the leading photography magazines, to know this will bring us no clients whatsoever. It just boosts the profits or standing of the infringer

We gave the photographer/author credit, so it’s not copyright infringement. Wrong. Quite simply if you fail to seek permission before reproducing somebody else’s work (assuming copyright still subsists in that work) then you’ve infringed their rights. Many infringers will consider attribution as an act of largesse, rather than something the creator is morally entitled to

My site gets very few visitors, so no harm done. As with so many excuses, this does nothing to change the fact an infringement has taken place. In most instances it doesn’t help to mitigate damages either (assuming the damages suggested by the claimant are set at a reasonable level)

We apologised to the photographer/author but they’re still hassling us for payment which is unfair. It seems extraordinary to suppose that acts of ‘theft’ could be waived simply because the culprit has said sorry when found out. An apology should be expected, but it does nothing to obviate the breach

I had no reason to believe the material was copyright protected. This simply isn’t good enough - if no copyright subsisted on the material then either the originator has been dead for more than 70 years or else the originator has issued statements to the effect that they have chosen to place their material in the public domain. It’s the responsibility of anybody using any content to undertake due diligence in finding the author. And if you can’t, the simple rule is that you shouldn’t use the material!

I’ve removed the content, so I shouldn’t have to pay any fees. It’s a requirement that any infringer removes content for which they have no permission to publish. It makes no material difference to the nature of the breach. You won’t get a thumbs up from the claimant (or the Judge) simply because you stopped when you were found out. To cease and desist is an expectation, not a favour

The claimant didn’t say anywhere that she charges for this work, so it’s unfair of her to send me a bill. It seems unrealistic to expect every paragraph and every photograph which appears on the Internet to be accompanied by a pricelist. To suggest or assume that no statement of intent equates to ‘free’ is foolhardy. In fact a great deal of material would never be offered for re-publication in the first place, making an infringement all the more unpalatable. All the Claimant has to do is place a reasonable value on the compensation he or she is seeking from the infringer

The claimant shouldn’t seek damages, because there’s been no loss. Even if an infringer isn’t selling the work of the creator, very often an act of infringement is flagrant (in other words the infringer ought to have known better). It’s commonplace for a court to award damages for that. The Claimant’s work can also be devalued the more it’s published, as can their reputation when someone else claims ownership of their work. In a court of law that will almost always be viewed as a loss

The Claimant is an aggressive bully. As with all things court related, statements and assertions of unreasonable behaviour have to be proven. Very often a Defendant will consider a Claimant to be a bully simply because they’ve dared to bring a case against them. What is overlooked is the very fact that if the Defendant had paid their debt then the Claimant wouldn’t have been placed in the position of issuing proceedings to recover their loss

My business now operates under a different company, so I’m no longer liable. It isn’t uncommon for a Defendant to close the company in operation at the time of the infringement and to set up another company with a different name. Whether this is part of the natural evolution of their business or a deliberate attempt to avoid the judicial process makes no difference. It’s highly likely the court will simply hold the individual culpable for the infringement, instead of the company

Other people have infringed the same photograph/text so the author can’t pick on me. That’s a bit like saying that plenty of people steal, so it shouldn’t be seen as an offence. Put simply, the matter doesn’t concern the other infringers - we’ll get around to them soon enough

The place where I found the work said it could be used rights-free. That is completely irrelevant. It’s the responsibility of anyone copying content which isn’t theirs to gain permission from the originator, not an unconnected third party. Finding the creator can be as easy as a simple photo or text search. And if you can’t find the originator, you shouldn’t use the content

I placed the work on my website to educate my followers, therefore it’s ‘fair dealing’. Nice try - the exclusion of fair dealing isn’t as broad as many might think. There is in fact only a fairly narrow range of circumstances where fair dealing might apply. Copying content to a business website isn’t one of them (irrespective of whether the author is credited). Incidentally copying content to a personal website or forum probably wouldn’t fall under fair dealing either

The bill the photographer/author has sent is far too high so I ignored it. If an infringer believes the bill is too high then the burden is on them to prove it. Pricing isn’t an exact science and the fee will depend on the quantity of the work used, its importance to the creator, the length of time over which it was used, and the fee the creator normally charges for that work. Otherwise, the creator will set their fee based on similar work sold by others of similar talent and standing, if possible.

Much of this depends on how unique, creative, or skilfully executed the image is. For that reason randomly picking a photograph on the Getty Images website and using their pricing system as a reference point may not be helpful. With respect to the use of written content, the price will depend on the number of words and the value of the article (the calculators at London Freelance can start you off). If an infringer feels the price is too high it’s best to try and negotiate with the Claimant. But if the Claimant can argue the price is fair, then the best policy is to pay up

There is a clear moral to this. There is absolutely no point defending a claim of copyright infringement when the Claimant can prove what you’ve done. Where the Claimant has followed the correct pre-action process an infringer will have ample opportunity to pay without further action being taken against them. If action is taken, there’s every chance the damages and costs awarded will be very much more than the bill which was originally presented to the infringer. Not only that, the damage to the infringer’s reputation (both business and personal) is likely to be considerable. Furthermore, the court case will be on public record and if the infringer is late paying the Order of Judgement then they’ll also have a CCJ to contend with. Good luck getting credit for the next six years (even on a ‘satisfied’ judgement). How can it be worth it?

Many of the creators I know have a policy of naming and shaming infringers. This can act as a deterrent to others and the transgression becomes widely known within our industry. And no doubt known to potential customers who might seek out that business and its services. I tend not to name and shame infringers if they do the right thing and promptly (and politely) pay the invoice I serve to them. But if an infringer wastes my time with groundless arguments, or pushes me to the point of lodging a case with a court of law then it’s another matter entirely.

educationLindsay Dobsonlaw